The dean of Washington State University libraries says he will add to the system’s collection a book that criticizes WSU administrators from 2005 to 2015 for violating the free-speech rights of students and faculty.

The action ends a 15-month-long ban on the title.

Jay Starratt made the decision on Wednesday shortly after former WSU journalism professor David Demers distributed to hundreds of organizations and professors a news release that criticized WSU libraries for banning his 2015 book, The Lonely Activist: An American Odyssey [see original news release at bottom of this message]. Demers gave Starratt and two other WSU officials two days notice before sending out the news release. They declined to comment.

But late Wednesday morning, Starratt notified Demers in an e-mail of his decision to add the book to WSU’s stacks.*

“I am pleased the university is finally taking ownership of its checkered history on free speech,” said Demers, who, as a faculty member, also was prohibited at one point from speaking to the university’s Faculty Senate. “Now it’s time for the university to correct some of the current problems — to ban or change three policies that currently violate or fail to protect the free-speech and due-process rights of faculty and students.”

First, Demers said, the university must eliminate a clause in the Faculty Manual that gives administrators the authority to terminate faculty who receive two or more unsatisfactory ratings in annual reviews. He said the WSU provost’s office has used that clause for many years to fire tenured faculty or force them to resign.

“That clause violates American Association of University Professor guidelines, which state that annual reviews should not be used to terminate faculty, because of the danger reviews pose to academic freedom and shared governance,” Demers said.

The university, for example, used that clause against Demers after he proposed a controversial 7-Step Plan to improve the quality of the Edward R. Murrow College of Communication. The Ninth Circuit Court of Appeals ruled in 2014 (Demers v. Austin, et al.) that the First Amendment protects Demers’ plan as well as other comments and proposals faculty make on issues of public concern while serving on university committees.

“The second policy change involves the wording of the university’s Strategic Plan, which currently fails to protect speech on campus that is not ‘constructive’ or ‘civil.’” Demers said the courts have consistently protected uncivil speech as long as it doesn’t involve violent action. The language of the Strategic Plan can be corrected simply by stating that the university “encourages” — but does not require — civil speech, he said.

“The third change needed,” Demers said, “is more due-process protection for faculty who receive below-average ratings in their annual reviews. There is no independent appeal’s process for aggrieved faculty once the provost has ruled. Although the Faculty Status Committee has the authority to hear such cases, it is not required to hear such cases and has no authority to enforce its decisions.”

Demers added that the committee refused to hear his appeal because its chair at the time said the committee was too busy handling tenure-denial cases. That decision forced Demers to file a lawsuit in federal court, which ended up costing the university somewhere between a half-a-million and a million dollars in fees, settlement costs and lost work hours.

Demers recommended created a separate committee composed of faculty, administrators and the public to hear annual review appeals. “None of the three groups should consist of a majority,” he said. The committee should also have the authority to enforce its rulings, he said.

Demers said responsibility for seeing that these changes are made rests with the office of the newly appointed President Kirk Schulz. Demers said he will post updates on his civil liberties website (www.acfcl.org ) as he tracks changes (or absence thereof) taking place at the university.

For more details about the free-speech and termination problems at WSU, see The Lonely Activist, which is available as a free PDF online at www.acfcl.org/lonelyactivist.html .

__________________

*In an e-mail to Demers on Wednesday, Starratt said, “I want to let you know that we will be adding your book to the collection. I actually had it on my desk [since last August] and was reading it as I had a minute or two. It is like three books in one. I am afraid I thought it was for me and so I was taking my time. I hope you are doing well and do not miss this winter. –Jay.”

Demers said he lauds the decision to add his book to the collection, “but Starratt’s excuse for not putting the book into WSU’s collection is not consistent with the facts.” A note attached to the book he sent to Dean Starratt specifically stated that Demers had previously tried unsuccessfully to get the book placed into the library and that he was sending this copy to Starratt to solve the problem.

Demers also said that neither Starratt nor other administrators questioned the veracity of the original news release, which accused the university of banning the book. “They never questioned the original news release because they never planned on putting the book into WSU’s stacks,” Demers said.

The book is currently available at numerous libraries, including University of Washington, Eastern Washington University, Harvard University, University of Minnesota and The Ohio State University. Only one copy was sent to each of these libraries, and the books were available within a month of the mailing, Demers said.

The original news release follows:

For immediate release Wednesday (1/18/17)

WSU Bans Book Critical of Its Free-Speech Record

University’s Strategic Plan Also Violates the First Amendment, Ex-Professor Argues

Washington State University’s library system has banned a book that criticizes university administrators for violating the free-speech rights of faculty and students on a half dozen occasions between 2005 and 2015.

The 544-page book — titled The Lonely Activist: An American Odyssey — was written by former tenured WSU journalism professor Dr. David K. Demers, who sued the university in 2009 when it attempted to punish him for offering a 7-Step Plan in 2007 to improve the quality of the Edward R. Murrow College of Communication.

The Ninth Circuit Court of Appeals ruled in 2014 that the plan was protected speech under the First Amendment. WSU declined to appeal to the U.S. Supreme Court and the case was settled later that year, when the university paid Demers $120,000 in attorney’s fees. The Lonely Activist contains an extensive history of the case and its impact on universities.

During the past year, Demers said he mailed two copies of the book to “acquisitions” at the WSU library and one copy directly to Jay Starratt, dean of the libraries. All three books were delivered, according to U.S. Postal Service records. In the August 2016 mailing to Starratt, Demers included a letter in which he noted the problems he had been having in getting the book placed in the WSU library system. Starratt did not respond.

The book is available in libraries at Eastern Washington University, University of Washington, Harvard University, University of Minnesota, and The Ohio State University.

“Some WSU administrators clearly don’t get it,” Demers said. “They should be embracing information that draws attention to past problems of free speech on campus, not banning books or promoting or rewarding administrators who in the past have shown disrespect for academic freedom and the First Amendment.”

Two days ago a copy of this news release was e-mailed to current WSU President Kirk Schulz and to Provost Daniel Bernardo and Starratt, giving them an opportunity to respond. They did not respond.

In Demers’ lawsuit (Demers v. Austin, et al., 2014, Ninth Circuit), President Elson Floyd and four administrators who were named as defendants tried to argue that faculty are not deserving of free-speech rights when they speak in their service-related or “professional” roles -- or what some legal experts call their “shared-governance roles.”

In an amicus curiae brief, the American Association of University Professors and The Thomas Jefferson Center for the Protection of Freedom of Expression argued that professors cannot do their jobs if they can be punished for speech uttered on issues of public concern during faculty and committee meetings.

In spring 2009, Floyd deliberately withheld a report from then Washington state Auditor Brian Sonntag, who concluded that an internal investigation of Demers was marred by an auditor’s conflict of the interest. Demers criticized Floyd in his book for the unethical act. The auditor continues to work at the university.

Floyd died of cancer in 2015, but vestiges of his administration continue to wield power at WSU and are still trying to force some tenured faculty from their jobs in violation of AAUP guidelines on tenure and academic freedom — another free-speech issue of concern addressed in Demers’ book.

Demers also said WSU’s current (2014-2019) strategic plan violates the First Amendment, because it only protects speech on campus that is “constructive and civil.” The courts have consistently ruled that the First also protects uncivil speech, as long as it doesn’t turn violent, he said. The previous WSU strategic plan (2008-2013) protected uncivil speech after Demers suggested to administrators in 2007 that the language be changed to “encouraging,” but not requiring, civil speech.

“Somehow that word (encouraging) got dropped from the current strategic plan,” Demers said.

Demers taught at WSU for 16 years before retiring in 2013. He lives in Phoenix and writes about free speech and civil liberties issues. A free PDF download of The Lonely Activist is available at www.acfcl.org/lonelyactivist.html.

By Arthur Willner July 29, 2014Commentary from Engage: The Journal of the Federalist Society Practice GroupsVolume 15, Issue 1

The decades-long debate over whether the First Amendment protects government-employed academics whose comments fail the “political correctness” test will ultimately be resolved by the U.S. Supreme Court, but until then, free speech advocates in the U.S. Court of Appeals for the Ninth Circuit can take heart from a recent decision that upholds the rights of public employee professors to speak freely on matters of public interest.

The Ninth Circuit recently denied a petition for panel rehearing and a petition for rehearing en banc in a case, Demers v. Austin, in which it strongly affirmed the First Amendment free speech rights of faculty employed at public colleges and universities. The opinion’s robust language in support of free speech should be cause for celebration by both faculty and students on campuses, once famously regarded as the “marketplace of ideas,” where these days a purported right not to be offended is thought to trump the First Amendment right to free expression.

Washington State University Pays Professor to Drop Free-Speech Lawsuit

WSU President Covers Up State Audit Report

Washington State University is paying former journalism professor David Demers $120,000 to drop his five-year-old federal free-speech lawsuit against four WSU administrators.

“I am extremely pleased with the settlement,” Demers said. “It sends a strong message to university administrators that those who intend to violate professors’ free-speech rights will be held accountable.”

The settlement was reached after the Ninth Circuit Court of Appeals ruled late last year, and again last spring, that Demers’ “7-Step Plan” to improve the quality of the Edward R. Murrow School of Communication was speech protected under the First Amendment.

WSU President Elson Floyd’s administration argued that professors do not deserve free-speech rights when speaking in their “professional,” or service-related, roles.

The appeals court rejected that argument.

“The court ruled that, when it comes to issues involving teaching and research, professors have the right to criticize administrators and offer their own programs, plans and ideas without fear of reprisal,” Demers said.

All of the settlement funds are being used to pay Demers’ legal fees, according to the agreement.

Demers filed the lawsuit in 2009. It claimed that administrators retaliated against him in 2007 after he submitted a plan urging them to seek national accreditation for the Murrow School (now a college), to provide a stronger voice for non-tenure professional faculty, and to separate the speech communication studies program from the journalism and mass communication programs.

The separation recommendation angered many faculty and administrators. The latter ordered an internal audit of Demers and Marquette Books, his part-time book publishing business.

Although the audit failed to find evidence of criminal or ethical wrong-doing, it concluded that Demers had violated some university rules — a conclusion Demers disputed.

University administrators then denied him raises, a chance for promotion, and leadership roles on committees, according to the lawsuit.

In 2011, a federal district court judge in Spokane sided with the administration, citing a controversial 2006 U.S. Supreme Court decision (Garcetti v. Ceballos) which held that public employees have no free-speech rights when speaking in their official roles.

Demers appealed.

Citing the same U.S. Supreme Court decision, Ninth Circuit Court Judge William A. Fletcher ruled that academic freedom protects professors when they speak on “issues related to teaching or research.” The Demers case was the first time since 2006 that the federal courts protected professors for service-related speech. Those courts had ruled against professors on seven other occasions.

Demers’ lawsuit also discovered that in 2009 President Floyd asked Washington state Auditor Brian Sonntag to investigate whether the WSU internal auditor who investigated Demers had a conflict of interest. Sonntag responded with a letter stating his opinion that the university auditor had violated auditor codes of ethics.

However, Floyd refused to provide Demers a copy of the letter, Demers said, then sought mediation in an attempt to force him from his job. Mediation failed when Floyd’s administration refused to sign an agreement ensuring that any final agreement would be available for public inspection, Demers added.

WSU agreed to settle the case after the assistant state attorney handling the case was reassigned to another job. Judy Endejan of Graham & Dunn of Seattle represented Demers in the case. She has since joined the law firm of Garvey Schubert Barer of Seattle, which gave Demers free legal advice during the latter stages of the lawsuit.

Demers resigned from WSU in December 2012 to promote civil liberty causes and to spend more time writing and publishing books, including one that explores declining commitment to civil liberties among universities and other bureaucratic organizations. He taught a course on media law at Arizona State University in fall 2013.

Legal bills of $350,000 in his case forced Demers to file bankruptcy in spring 2014. The U.S. Bankruptcy Court approved the settlement agreement on October 23.

Demers moved his family to Arizona in summer 2014.

The Murrow College is still not accredited.

-30-

For more information, contact

Dr. David Demers

American Center for Civil Liberties

16421 North 31st Avenue

Phoenix, Arizona 85053

509-290-9240

info@acfcl.org

www.acfcl.org

Shared Governance “Is Only One Court Decision Away from Annihilation,” But Do Professors Really Care?

By David Demers

Executive Director

American Center for Civil Liberties

When I filed a federal free-speech lawsuit in 2010 against four administrators at Washington State University (Demers v. Austin), where I was a tenured associate professor of communication, I did not expect a lot of support from anyone, including faculty.

Professors are, after all, suspicious by nature.

Many tend to view free-speech lawsuits, even from their own kind, as a cover for personal grievances.

“Demers is a troublemaker,” some said at WSU.

No surprise there.

But three years later — after a three-judge panel of the Ninth Circuit Court of Appeals rejected WSU’s argument that professors do not deserve free-speech rights when they speak in their service-related roles — I am puzzled by the lack of concern among faculty across the country for protecting shared governance, which is only one court decision away from annihilation.

Since the 2006 U.S. Supreme Court 5-4 decision in Garcetti v. Ceballos, the lower federal courts have ruled seven out of eight times that professors do not deserve free-speech rights when they question or criticize administrators and their policies regarding budgets, resource allocation, curriculum and program development.

My lawsuit is the sole exception.

The Ninth Circuit panel ruled that my controversial 7-Step Plan for reorganizing and improving the Edward R. Murrow College of Communication was protected because it dealt with an issue of public concern. At the time, I was serving on a “structure committee” organized by the WSU administration. I disagreed with the committee’s recommendations.

But if WSU succeeds on its en banc appeal to the Ninth Circuit (currently in progress), then administrators can go back to retaliating against faculty for anything — and I mean anything — they say when serving on committees or on faculty senates. Shared governance becomes controlled governance.

Yes, the stakes are extremely high.

And some groups can see this.

They include the American Association of University Professors and the Thomas Jefferson Center for the Protection of Free Expression, which wrote an amicus curiae brief in support of free speech for faculty in my lawsuit. The Foundation for Individual Rights in Education and a group of professors at the University of Oregon which is trying to protect free-speech rights for faculty there also have promised to join future briefs.

Yet rank-and-file faculty and their leaders across the country cannot seem to get their head into the game.

For example, when I wanted to speak to the WSU Faculty Senate in 2011 about the importance of shared governance and academic freedom, the Senate chair at the time refused to allow me to appear before the Senate. (You can interpret that Demers is a troublemaker.) The chair backed down after I pointed out that the Senate is a public body and cannot refuse to allow faculty or citizens speak at its public meetings.

In 2012, I asked the AAUP WSU chapter to condemn the WSU administration for its anti-free speech stand. But one leader of the group was worried about taking a tough stance. He wanted to run for president of the Faculty Senate.

In September 2013, after the Ninth Circuit Court issued its order protecting service-related speech in my case, one faculty member at another Pac 12 university asked upper-level administrators if his program should send out an e-mail to faculty and staff notifying them of the decision. But the administrator said the case “was not that important.”

In early October 2013, I asked the president of the Arizona State University Faculty Senate whether his organization would be willing to sponsor a panel or colloquium to discuss the implications of the Ninth Circuit ruling. (I am teaching part-time at ASU.) He was very sympathetic, but he didn’t believe the “time was right” to get the Senate involved. He graciously referred me to two other groups of faculty that sponsor meetings.

Five weeks have passed and no response.

In early November, I e-mailed the current chair of the WSU Faculty Senate, asking him if the Senate “has ever gone on record (either through a vote or a written communication) to express its dissatisfaction with the legal position taken by WSU administrators in Demers v. Austin that professors do not deserve free-speech rights when acting in their ‘professional roles’ (the administration’s terminology in its recent en banc appeal to the Ninth Circuit) ... .”

No response.

Over the last three years, I have sent more than two dozen informational e-mails to faculty at scores of universities across the country and had some letters-to-the-editor published in various newspapers, including the Chronicle of Higher Education. To date, not one faculty leader or Faculty Senate has publicly condemned WSU for its anti-free-speech stance aside.

Perhaps a better indicator of lack of faculty interest in protecting shared governance comes from the events at Idaho State University, where the administration in 2011 suspended the Faculty Senate after it asked the administration to give librarians and non-tenured faculty voting rights in the shared-governance process. AAUP censured the administration. But the Chronicle hasn’t published a single story on the incident since 2011, an indicator that faculty across the country are failing to raise a stink.

Surveys show that nine of 10 faculty believe “participation in shared governance is a worthwhile faculty responsibility” (see Research & Polling Inc., “Follow-up Survey: Shared Governance and Communication Issues, Faculty and Staff Survey,” prepared for the University of New Mexico, May 2011).

But why, then, are faculty so reluctant to get into the game?

Some of the reluctance can be explained by fear. Administrators are powerful, and behind the scenes they can dole out subtle punishments — e.g., a lower annual review rating, a small raise, lack of appointments to key committees — without being accountable.

Some of the reluctance also stems from administrative cooptation of high-ranking faculty leaders. Most Senate presidents or chairs earn good salaries as professors and they get invited to events attended by “important people” from the university, community and state. It feels good to feel important.

And some of the reluctance may be explained by changes in organization structure, or what sociologists sometimes call the “iron law of bureaucracy,” which can choke the dissent, good sense and courage out of faculty.

Whatever the reason for the lack of action, let there be no mistake.

There may never be another chance to save shared governance.

The time to get into the game is now.

(Note: Final briefs for the en banc hearing in Demers v. Austin have been submitted. If the Ninth Circuit agrees to hear the case, amicus curiae briefs can be filed. After the Ninth Circuit rules, the aggrieved party has the right to appeal to the U.S. Supreme Court.)

PHOENIX, AZ — Since a 2006 U.S. Supreme Court ruling that government employees have no free-speech rights when performing their official roles, federal courts have consistently ruled that professors at public universities nonetheless are deserving of free-speech protection when they speak as teachers or researchers.

However, the courts have ruled against professors in seven out of eight cases when they speak in their service-related or shared-governance roles, which often involves questioning or criticizing administrators and their policies regarding budgets, resource allocation, curriculum and program development.

The one exception – a case where a three-judge panel of the Ninth Circuit Court of Appeals ruled that a professor at Washington State University had a free-speech right to offer an alternative plan for restructuring a program – ultimately may determine the future of shared governance and, hence, the distribution of power at public universities.

These are the key findings of an American Center for Civil Liberties analysis of all 12 cases adjudicated in federal courts since the Supreme Court ruled in Garcetti v. Ceballos (2006) that public employees do not deserve free-speech protection when speaking in their official roles. The cases were obtained from the American Association of University Professors’ website.*

In Garcetti, two Supreme Court justices suggested that professors may be exempted from the no-free-speech restrictions when it comes to teaching and research. The lower courts have agreed.

According to the ACFCL analysis, state and federal district or appeals courts since 2006 always ruled that professors deserved First Amendment protection when the speech in question was related to a professor’s teaching or research responsibilities (see three cases in table below).

The courts also ruled in favor of a professor when the speech was unrelated to the job (citizen speech).

But when professors criticized administrators’ decisions or policies or offered alternative plans for structuring an administrative unit – speech covered under the rubric of shared governance -- the lower courts ruled against the professors seven out of eight times.

The single exception is Demers v. Austin (2013), where a three-judge panel of the Ninth Circuit Court of Appeals ruled unanimously in September that a professor’s plan for restructuring the Edward R. Murrow College of Communication was protected by the First Amendment because it involved a matter of public concern and did not involve personal grievances.

Washington state attorneys representing the four WSU administrator-defendants are appealing the case to the entire Ninth Circuit, which covers nine states: California, Oregon, Washington state, Idaho, Nevada, Arizona, Utah, Alaska and Hawaii. The administrator-defendants also have the right to appeal to the U.S. Supreme Court.

Historically, universities have more decentralized decision-making than other forms of government.

|But if the U.S. Supreme Court hears the case and rules in favor of the defendants win, the distribution of power at public universities across the nation will be radically altered in favor of administrators.

Professors who serve as members of faculty senates and on various departmental and university committees, for example, will have no freedom from administrative retaliation for comments they make in their service roles.

The only exception would be at universities that create separate binding contracts protecting such speech. The American Association of University Professors endorsed this practice after the Garcetti decision, but university administrations and the ruling boards are not legally required to enter into such agreements.

Study and story prepared by David Demers, executive director of ACFCL and the plaintiff in Demers v. Austin. For additional information, see www.acfcl.org.

Posted 11/1/2013

How Far Do Free-Speech Protections for Faculty Members Reach? October 8, 2013

To the Editor (of The Chronicle of Higher Education):

My compliments to Thomas Sullivan and Lawrence White for their commentary "For Faculty Free Speech, the Tide Is Turning," (The Chronicle, September 30), which succinctly reviewed the legal history of free-speech rights for faculty, including two recent federal appeals-court decisions (Adams and Demers) that exempted faculty from the U.S. Supreme Court’s anti-free-speech ruling in Garcetti v. Ceballos (2006).

As the appellant in one of those two appeals-court decisions (Demers v. Austin, 2013), I would like to draw attention to an important question that I think has been glossed over in the debate over faculty free-speech rights: Does the First Amendment protect faculty only when they speak on matters of public concern in their research or teaching roles, or does it protect them in their service roles too?

In Adams v. Trustees of the University of North Carolina-Wilmington (2011), the Fourth Circuit Court of Appeals ruled that Professor Michael S. Adams’s speech was protected because it was none of the above. His speech was unrelated to his job duties as a criminologist. This included a book that criticized political correctness at universities. The appeals court noted that language in the Garcetti decision appears to offer protection for speech made by professors acting in their research and teaching roles, but Mr. Adams’s speech fell outside of those two categories—it was private speech on a public issue and, therefore, was protected.

In my case, the Ninth Circuit Court of Appeals implicitly extended free-speech protection to professors when they speak in their service roles. The court protected my Seven-Step Plan for improving the quality of Washington State University’s Murrow College of Communication, even though the plan was part of my job duties and, strictly speaking, not directly related to my research program or teaching roles.

The defendant-administrators in my case are appealing the decision, and no doubt will argue that my “service role” speech does not deserve free-speech protection. The stakes are high. If WSU wins the appeal before the full Ninth Circuit bench or the U.S. Supreme Court, then professors will lose their right to criticize administrators. Shared governance will be dead.

David Demers Adjunct Professor Journalism and Mass Communications Arizona State University Phoenix

How We (Faculty) Almost Lost Shared Governance (But Still Could)

This is not a time to be overconfident about free-speech rights for faculty. This is a time for action; for asking the question: Why are WSU officials trying to destroy shared governance?

By David Demers*

American Center for Civil Liberties

October 8, 2013

I was into my tenth year of teaching at Washington State University when on May 30, 2006, the U.S. Supreme Court ruled in Garcetti v. Ceballos that public employees do not have free-speech rights when acting in their official duties.

Seven months later I was crafting a 7-Step Plan, as I called it, designed to improve the quality of the Edward R. Murrow School of Communication, where I was a tenured associate professor.

Like most other professors, I assumed that, under the principles of shared governance and academic freedom, we professors had the right to criticize administrators’ policies and offer our own plans for reorganizing an academic unit without fear of retaliation.

But, at the time, I was unaware of the Garcetti decision.

A conservative majority of five justices — led by Justice Anthony M. Kennedy — ruled that an assistant prosecutor could be punished by his superiors even after reporting that police had fabricated evidence to obtain a search warrant. Government employees, the majority opinion stated, only have free-speech rights when they speak as citizens, not employees.

In dissent, Justice David H. Souter wrote that he hoped the Garcetti ruling did not apply to public universities, “whose teachers necessarily speak and write ‘pursuant to official duties.’”

Kennedy’s majority opinion seemed to agree: “We need not ... decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”

Free-speech-for-faculty advocates were relieved.

“I am very pleased that even the majority has recognized that distinctive constitutional considerations apply in the academic context,” David M. Rabban, general counsel for the American Association of University Professors and a professor at the University of Texas at Austin School of Law, told the Chronicle of Higher Education.

But someone forgot to tell the nation’s federal judges about the academic exception.

Over the next four years, federal appeals courts denied free-speech rights to professors who criticized administrators for hiring too many adjunct faculty, made comments in support of a student during a disciplinary hearing, and criticized the use of grant monies.

By early 2011, the American Association of University Professors was urging faculty “to defend their academic freedom ... not through the courts but through clear university policies.” Several universities drafted such policies.

Then, in early April 2011, a glimmer of hope from the courts.

The 4th Circuit Court of Appeals ruled in Adams v. Trustees of the University of North Carolina-Wilmington that a professor who converted to Christianity and wrote a book critical of political correctness on campus had the right to speak without fear of retaliation.

The headline in the Chronicle blared: “Appeals Court Hands Big Win to Advocates of Free Faculty Speech in Ruling on Pundit-Professor.”

Turns out the 4th Circuit Court did not expand or even deal with the issue of on-the-job-free-speech rights for faculty. The court simply said that Adams’ speech was protected because it was not related to his job as a criminologist. It was private speech, or citizen speech, and his university could not deny him a promotion based on those writings, even though he submitted them to the promotion committee.

The Adams case did not break new ground. It reinforced Garcetti, which only gave free-speech rights to citizens.

On Nov. 4, 2012, a three-judge panel of the 9th Circuit Court of Appeals heard my case (Demers v. Austin, et al.). Given the ruling in Adams, my attorney tried to argue that my 7-Step Plan was private speech, because I submitted it on my business letterhead and offered to donate $100,000 of my own money if the university implemented the plan.

Lead judge William A. Fletcher didn’t buy it.

“I have trouble ... treating that 7-Step Plan as cleanly private speech,” he said. “[I]t originates when he (Demers) is a member of a committee. It's clearly undertaken in tight relationship to his job and the things that he cares about in his job. He is suggesting an important restructuring of two departments.”

After hearing that comment, I was 99 percent certain that I was going to the lose the free-speech battle.

But I was wrong.

In the unanimous opinion, Fletcher wrote on Sept. 4 that my plan was protected speech, because it involved an issue of public concern (the quality and structure of a public university program).

“Teaching and academic writing are at the core of the official duties of teachers and professors,” Fletcher wrote. “Such teaching and writing are ‘a special concern of the First Amendment.’”

Faculty-rights advocates heralded the decision. The Chronicle even published a commentary several weeks later from two top-level non-WSU university administrators (the kind of administrators we faculty like because they support shared governance) under the headline: “For Faculty Free Speech, the Tide Is Turning.”

But don’t go near the water just yet.

WSU officials have appealed to the full 9th Circuit Court, arguing that my 7-Step Plan is “professional speech,” not speech related to teaching or research, and therefore does not deserve First Amendment protection.

Fletcher and proponents of free-speech for faculty might argue that the quality and structure of an academic unit is intimately tied to the teaching and research roles. Separating them is problematic, maybe even impossible.

But I concede that my 7-Step Plan is service-related speech, which means it falls under the rubric of shared governance and, thus, deserves free-speech protection.

Hard to say how the courts will rule from here on out.

But one thing is certain: If the high courts rule against service-related speech, then shared governance will cease to exist as a meaningful concept in higher education. I’m not sure many faculty and free-speech advocates understand that.

My lawsuit is no longer about a little plan to improve an academic unit. It is about the future shared governance and the distribution of power on campus. It is about the possibility of turning the university into a full-blown corporate organization with a more rigid hierarchy of centralized power and control that can threaten the search for truth and knowledge.

This is not a time to be overconfident about free-speech rights for faculty. This is a time for action; for asking the question: Why are WSU officials trying to destroy shared governance?

*David Demers is founder and director of the American Center for Civil Liberties and an adjunct professor in the Walter Cronkite School of Journalism and Mass Communication at Arizona State University, where he teaches a course on law of mass communication. In this article, he speaks as a citizen, not as an ASU employee. Demers is available at no charge to talk about the implications of his lawsuit and the future of shared governance and academic freedom.

WSU's Appeal in Demers v Austin Is an Affront to Free SpeechLetter to the Editor published 9/30/13 in the Washington State University Daily Evergreen

Why are the WSU Board of Regents, Dr. Elson Floyd's administration and the Washington state Attorney General's office trying to kill shared governance? And why are the WSU Faculty Senate and Edward R. Murrow College of Communication professors allowing them to do that?

These are two questions that professors across the country are asking in the wake of a Ninth Circuit Court decision on Sept. 4 that said faculty have a First Amendment right to criticize administrators and offer their own plans for restructuring and improving programs (Demers v. Austin; I am the plaintiff in the case).

The 3-0 decision is being hailed by the American Association of University Professors, the Thomas Jefferson Center for the Protection of Free Expression and the Foundation for Individual Rights in Education as a major victory for faculty who cherish academic freedom, free-speech ideals and shared governance.

Yet WSU is going to appeal this decision and, it if wins, every faculty member at WSU and those in nine western states (the Ninth Circuit) will lose the right to publicly criticize administrators' policies without fear of retaliation.

As John Stuart Mill once remarked: "Bad men need nothing more to compass their ends, than that good men should look on and do nothing."

David Demers

Are WSU Murrow Administrators Digging Their Own Anti-Free Speech Grave?

By David Demers, executive director, American Center for Civil Liberties

Demers is the plaintiff in a federal free-speech lawsuit that could determine the future of shared governance in higher education. He teaches a mass media law course in the Walter Cronkrite School of Journalism and Mass Communication and writes this commentary as a citizen, not employee of ASU.

When I began my career as a professor two decades ago, it never crossed my mind — not even for a nano-second — that I did not have the right to criticize administrators and their policies.

In fact, I assumed that was part of my job.

The production of knowledge and truth thrives best when faculty can question without fear of reprisal whether administrators (and fellow faculty) are making good decisions about programs, budgets and curriculums.

That is, of course, the logic behind shared governance.

But the leadership at Washington State University, where I taught for 16 years, is trying to kill shared governance.

In fact, it is going to ask the entire Ninth Circuit Court of Appeals to declare that a three-judge panel of that court got it wrong when it ruled September 4 that I (and professors like me) have the right to criticize administrators and submit alternative plans for reorganizing administrative units (Demers v. Austin).

The panel overturned a U.S. District Court ruling which declared that professors, as employees, do not deserve free-speech protection.

“Teaching and academic writing are at the core of the official duties of teachers and professors,” Judge William A Fletcher wrote for the panel. “Such teaching and writing are ‘a special concern of the First Amendment.’”

The WSU attorneys representing the four administrator-defendants are expected to argue before the entire Ninth Circuit that my 7-Step Plan for improving the quality of the Edward R. Murrow journalism and mass communication programs at WSU falls outside of “teaching and academic writing” duties.

Quite frankly, it fits better in the service category, even though decisions about the quality of a program are not independent of teaching and research. Of course, that’s why the concept of shared governance emerged in the first place — to protect faculty from retaliation when acting in their service roles.

I am dumbfounded as to why any university administration would want to go down in history as the killer of shared governance.

But what is even more disturbing here is that the anti-shared governance stance is casting the Murrow College as a bully of free speech.

Murrow, a broadcast journalist who promoted free-speech causes all his life, is no doubt turning in his grave.

A U.S. District Court judge erred when he ruled that a Washington State University professor was not entitled to First Amendment protection when he developed a controversial plan for restructuring and improving a journalism program, the Ninth Circuit Court of Appeal ruled Wednesday.

“The decision is a great victory for those who cherish academic freedom, free-speech ideals and shared governance,” said David Demers, a former tenured WSU professor who created the plan to improve the quality of education in the Edward R. Murrow School of Communication.

“Professors should be able to criticize administrators and their policies and play an active role in the affairs of the university,” added Demers, who left the university in 2012 and ...

A U.S. District Court judge erred when he ruled that a Washington State University professor was not entitled to First Amendment protection when he developed a controversial plan for restructuring and improving a journalism program, the Ninth Circuit Court of Appeal ruled Wednesday.

“The decision is a great victory for those who cherish academic freedom, free-speech ideals and shared governance,” said David Demers, a former tenured WSU professor who created the plan to improve the quality of education in the Edward R. Murrow School of Communication.

“Professors should be able to criticize administrators and their policies and play an active role in the affairs of the university,” added Demers, who left the university in 2012 and currently teaches a mass media law course in The Walter Cronkite School of Journalism and Mass Communication at Arizona State University. “The decision bolsters the idea that free-speech protection for professors extends beyond their academic research programs and the classroom. It covers our service role, too.”

Demers brought suit in 2010 alleging that four university administrators retaliated against him for distributing a “7-Step Plan” that sought to improve the quality of the Murrow program (Demers v. Austin, et al.).

The plan asked university administrators to give more power to professional faculty, to seek national accreditation for the Murrow School, and to remove a non-journalism major from the school. The latter program only served 60 of the 1,000 majors in the Murrow School but was consuming one-fourth of the school’s resources, Demers said. Demers also offered to donate $100,000 of his own money if the university implemented the plan.

University administrators ignored the plan.

When he submitted the plan, Demers said he assumed his speech was protected under the principles of shared governance and academic freedom.

The WSU administrator-defendants disagreed.

But instead of fighting the lawsuit on its merits, the defendants asked Spokane District Court Judge Robert H. Whaley to declare that professors, as employees, do not deserve First Amendment protection.

Whaley agreed and threw the case out of court, before it went to trial.

To support his decision, he cited the 2006 U.S. Supreme Court ruling in Garcetti v. Ceballos, which held that government employees (an assistant prosecuting attorney in this case) are not entitled to free-speech protection, even if those employees report criminal wrongdoing on the part of other government workers (the attorney learned that police officers had fabricated evidence to obtain a search warrant).

The high court ruled 5-4 against the “whistle blower,” with the conservative justices outflanking the moderates and liberals. The majority essentially ruled that it is better to control employees than to expose corruption, Demers said.

But the Ninth Circuit Court of Appeals panel, headed by Judge William A. Fletcher, ruled in the Demers case that Garcetti does not apply to professors, because “teaching and academic writing are at the core of the official duties of teachers and professors. Such teaching and writing are ‘a special concern of the First Amendment.’ ... We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court.”

The appeals court ruling means that, to receive First Amendment protection, a professor’s speech must address matters of public concern and the professor’s interest in the matter must outweigh the state’s interest in promoting efficiency on the job.

The appeals court remanded the Demers case to the Spokane District Court for further review. A trial date has not been set.

The defendants could appeal to the U.S. Supreme Court.

But Demers said this would hurt the reputation of the Murrow program even more.

“From the beginning, it never made any sense that administrators working in and supervising the Murrow journalism and mass communication programs would argue that journalism professors don’t deserve free-speech protection,” Demers said. “I think this is a case of where the administrative bureaucracy was so focused on winning that it forgot about the importance of principles. Free speech is a principle worth defending.”

Demers said the ruling is another black mark on the administration of WSU President Elson Floyd, who in 2009 concealed a report from the Washington state Auditor’s Office which concluded that a WSU internal audit of Demers was tainted by a conflict of interest.

The appeals court also ruled that the defendants have qualified immunity from financial damages because the Ninth Circuit has never clarified Garcetti. This means Demers cannot seek punitive damages. But Demers, who said the case has cost him about $350,000 so far, said he didn’t care.

“This was a case about principles and free-speech rights, not money.”

The American Association of University Professors and the Thomas Jefferson Center for the Protection of Free Expression penned a friend-of-the-court brief in support of free-speech rights for faculty.

Demers taught at WSU for 16 years. He quit in 2012 to spend more time writing about civil liberties issues.

WSU has implemented some aspects of Demers’ 7-Step Plan, but the Murrow program, now a college, is not accredited by the Accrediting Council on Education in Journalism and Mass Communication. The Cronkite School is.

WSU J-Professor Predicts U.S. Appeals Court Will Deny Faculty Right to Criticize Administrators

Defendants' legal position unwittingly pits Edward R. Murrow College against two free-speech organizations

A journalism professor who filed a free-speech lawsuit against four administrators at Washington State University is predicting the Ninth Circuit Court of Appeals will deny university professors, as employees, the right to criticize administrators and their policies.

“If I am right, it means the balance of power at universities in Washington state and six other western states will be radically altered,” said David Demers, an associate professor of communication in The Edward R. Murrow College of Communication at WSU. “The decision will undermine shared governance, a century-old principle in which professors share power with administrators when it comes to making decisions that affect university budgets and programs.”

Demers filed the lawsuit (Demers v. Austin, et al.) in 2010 when he was a tenured professor at WSU. He asserted that administrators associated with the Murrow program punished him in his annual reviews after he submitted a 7-Step Plan to improve the quality of the Murrow program and pledged to donate $100,000 of his own money if the university implemented it. The plan, which recommended a major restructuring of the program including the goal of seeking national accreditation, angered many administrators and faculty.

The four defendants, represented by the Washington state attorney general’s office, argued that tenured faculty like Demers, as employees, do not deserve free-speech protection. The AG’s legal position has unwittingly pitted the Murrow journalism program against two free-speech organizations. The American Association of University Professors and the Thomas Jefferson Center for the Protection of Free Expression wrote a joint amicus curiae brief in support of plaintiff Demers.

“Win or lose, the legal position that faculty do not deserve First Amendment rights forever taints the good name of broadcaster Ed Murrow as well as the College that bears his name,” Demers said. “This could have been avoided if the state attorneys had fought the case on its merits. But administrative bureaucracies don’t always act on principle.”

In June 2011, a U.S. District Court judge in Spokane agreed with the defendants that faculty do not deserve free-speech protection. Judge Robert H. Whaley cited as precedent a 2006 U.S. Supreme Court case, Garcetti v. Ceballos, which held that public employees do not have First Amendment protection for speech connected to their jobs. Public employees only have protection when they speak as private citizens.

The high court left open the door of whether professors, as teachers or researchers, have more free speech protection than other government employees. However, the court did not address the issue of whether professors deserve protection when they speak in their service roles, which often involves criticizing administrators when it comes to making decisions that affect university budgets and programs.

Demers appealed the district court decision, arguing that faculty should not be punished for criticizing administrators.

But in Seattle on November 7, 2012, two of the three appeals court judges who heard oral arguments in the case expressed doubts about whether Demers’ 7-Step Plan was private speech, even though the cover letter identified him as a private citizen.

“I have trouble — speaking only for myself — treating that 7-Step Plan as cleanly private speech,” said William A. Fletcher. “I understand that Dr. Demers sets it up that way. On the other hand, it originates when he is a member of a committee. It's clearly undertaken in tight relationship to his job and the things that he cares about in his job. He is suggesting an important restructuring of two departments. I mean, I have trouble seeing that as purely private speech.”

“Well, first of all, your honor, the question of whether it is part of his job duties, as this court has said in at least five cases, is a mixed question of fact and law that should be reserved for the trier of fact. In this case, the district court basically accepted all of the evidence that the university put forth and did not consider the evidence that Dr. Demers put forth ... . The 7-Step Plan as one component recommended a splitting of the mass comm[unication] and comm[unication] studies. The rest of it is not covered anywhere by any connection with his work in connection with the structure committee.”

“You know, I disagree with that,” Fletcher responded. “The 7-Step Plan ... is a thoughtful proposition for restructuring how journalism is taught, how the faculty is organized, how money is raised — all of that has to do with running of the institution in a very important way.”

Demers said the issue of shared governance never came up during the hearing.

“I’m not sure whether the judges are aware of the consequences of a ruling which denies professors free-speech protection when they offer alternative plans for structuring a university or when they criticize administrators. Such a decision will have tremendous adverse consequences for the balance of power at universities. No professor will feel secure in criticizing her or his university administrators.”

A ruling from the appeals court is expected in January or February 2013.